Supreme Court New South Wales Medium Neutral Citation: Bayssari v Bazouni [2014] NSWSC 910 Hearing dates: 30 June and 1 July 2014 Decision date: 09 July 2014 Jurisdiction: Equity Division Before: Ball J Decision: Proceeding be dismissed with costs Catchwords: SUCCESSION - family provision - whether applicant an "eligible person" under Succession Act 2006 (NSW), s 57(1)(e) or s 57(1)(f) - whether applicant "wholly or partly dependent on the deceased" and "a member of the household of which the deceased person was a member" - whether applicant and deceased in a "close personal relationship" at the time of deceased's death COSTS - family provision - whether circumstances warrant departure from general rule in UCPR r 42.1 that costs follow the event Legislation Cited: Family Provisions Act 1982 (NSW) Property (Relationships) Act 1984 (NSW) Succession Act 2006 (NSW) Cases Cited: Alexander v Jansson [2010] NSWCA 176 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Barlevy v Nadolski [2011] NSWSC 129 Benney v Jones (1991) 23 NSWLR 559 Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 Diver v Neal [2009] NSWCA 54 Donaldson v Lawless [2013] NSWSC 861 Dridi v Fillmore [2001] NSWSC 319 Drury v Smith [2012] NSWSC 1067 Evans v Levy [2011] NSWCA 125 Fulton v Fulton [2014] NSWSC 619 Fulton v Fulton (No 2) [2014] NSWSC 857 Grech v Walsh [2007] NSWSC 302 Harrisson v Skinner [2013] NSWSC 736 Harkness v Harkness (No 2) [2012] NSWSC 35 Hayes v Marquis [2008] NSWCA 10 Hogan v Hogan [2013] NSWSC 1405 Kingsland v McIndoe [1989] VR 273 Lillis v Lillis [2010] NSWSC 359 McKenzie v Baddeley [1991] NSWCA 197 Markulin v Drew (1993) DFC 95-140 McCusker v Rutter [2010] NSWCA 318 McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484 Middleton v Kiama District Hospital [1970] 3 NSWR 136 Munro v Lake (Supreme Court (NSW), 8 February 1991, unrep) Oldereid v Chan [2013] NSWSC 434 Petrohilos v Hunter (1991) 25 NSWLR 343 Phillips v James [2014] NSWCA 4 Popescu v Borun [2011] NSWSC 1532 Porthouse v Bridge [2007] NSWSC 686 Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Re Fulop Deceased (1987) 8 NSWLR 679 Russell v NSW Trustee and Guardian [2013] NSWSC 370 Sharpless v McKibbin [2007] NSWSC 1498 Simmons v Pizzey [1979] AC 37 Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Skarica v Toska [2014] NSWSC 34 Skinner v Frappell [2008] NSWCA 296 Thompson v Public Trustee of New South Wales [2010] NSWSC 1137 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Wagstaff v Wagstaff (Supreme Court (NSW), 6 November 1991, unrep) Wolff v Deavin [2012] NSWSC 1315 Category: Principal judgment Parties: Maroun Bayssari (Plaintiff) Antoine Bazouni (First Defendant) Marierose Harfouche (Second Defendant) Representation: Counsel: J Hyde (Plaintiff) FFF Salama (Defendants) Solicitors: Prestige Solicitors (Plaintiff) New South Lawyers (Defendants) File Number(s): 2013/139768 Publication restriction: None Judgment Introduction 1By a summons filed on 6 May 2013, the plaintiff, Mr Maroun Bayssari, seeks an order pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) that provision be made for him out of the estate of the late Debe Bazouni (the Deceased), who was the wife of his maternal uncle. 2Mr Bayssari is said to be an eligible person within the meaning of s 57 of the Act in whose favour an order could be made because either he was wholly or partly dependent upon the Deceased and was a member of the household of which the Deceased was a member during the period from about November 2007 until the Deceased's death in May 2012, or he and the Deceased were living in a close personal relationship at the time of her death. Background facts 3The Deceased died on 8 May 2012 at the age of 89 years. Her estate consisted principally of a house in Guildford in which she lived, which has since been sold. After the payment of liabilities of approximately $49,000, but before the payment of legal costs associated with this proceeding, the value of the estate is approximately $615,000. 4By her last will made on 29 June 2006, the Deceased left her estate to be divided equally between her three children, Antoine Bazouni, the first defendant, Marierose Harfouche, the second defendant, and Therese El Akhouri. She appointed Mr Bazouni and Ms Harfouche her executors. Both live in Sydney. Ms El Akhouri lives in Lebanon. The estate has been distributed, but the evidence is that the beneficiaries have each retained sufficient money to repay to the estate in the event that Mr Bayssari succeeds in his claim. 5Mr Bayssari was born in Tarablus, Lebanon in July 1956. He migrated to Australia in August 1983 and married in September 1983. He can speak and understand English, although not very well, and he gave his evidence through an interpreter. He cannot read English. 6Mr Bayssari has five children from whom he is estranged. He separated from his wife in 2002, and, following their separation, he lived with the Deceased and her husband for a period of about 4 months. 7There is a dispute concerning the circumstances in which Mr Bayssari ceased to live with his uncle and aunt. The defendants say that Mr Bayssari was asked to leave by his uncle (their father) because of constant arguments. Mr Bayssari gives no reason for leaving but says that he visited his uncle and aunt on a daily basis to spend time with them and to help care for them following his departure. Again, that evidence is disputed by the defendants, who say that Mr Bayssari rarely visited the Deceased and her husband. 8It is difficult to make an assessment of the credibility of Mr Bayssari and the defendants. Mr Bayssari gave evidence through an interpreter. He was cross-examined extensively. However, there were issues concerning the accuracy of the translation of his evidence on the first day he gave evidence. To a significant degree, the cross-examiner and Mr Bayssari were at cross-purposes, and many of the answers given by him were non-responsive. Both the first and second defendants were cross-examined for only a short period of time, and it was not possible to form any view on their credibility from what they said. In addition, the evidence given by each of the witnesses was likely to have been clouded by family history and the grievances that each witness felt - in the case of Mr Bayssari, because, on his view, he had been evicted unjustifiably from the place he regarded as his home, and, in the case of the defendants, because their cousin was making what they regarded as an unjustified claim on their late mother's estate. In those circumstances, I have not attempted to resolve all of the many conflicts in the evidence given by Mr Bayssari and the defendants. Rather, I have attempted to focus on the important facts and to make findings by reference to the objective evidence, the likelihood that particular events occurred and, where it is available, evidence that corroborates the evidence given by the witnesses. 9Up until 2002, Mr Bayssari lived with his wife and children. He had his own family, which unquestionably would have been the focus of his life. The likelihood is that he saw the Deceased and her husband from time to time and was on good terms with them. It is hard to believe that he would have moved in with them if he were not. The likelihood is that the arrangement by which he moved in with them was intended to be a temporary one arising from the particular circumstances at the time. I do not think that it establishes that the relationship was a particularly close one; and there is no other evidence to suggest that it was. Nor do I think it was likely that Mr Bayssari saw the Deceased and her husband every day when he moved out, as he said he did. Mr Bayssari struck me as an independent person who sought to live his own life on his terms, not as someone who would devote much of his time to the care of his aunt and uncle with whom he had stayed for a short period of time because of his marital difficulties. 10It is unclear what Mr Bayssari did when he moved out of the Deceased and her husband's home. He gave no evidence concerning his employment history, but it seems clear that he largely ceased work following the separation from his wife, if not before, and that he was on unemployment benefits from that time. He did give evidence that, in 1974, he was hit in his head by a piece of shrapnel flying from a bomb explosion during the civil war in Lebanon and that he was hospitalised for a month and required surgery to remove the shrapnel. He said that, since then, he has continued to experience headaches and difficulties with his memory and in focussing, and his injury may have affected his ability to work. He also gave evidence that, for a time, he worked for a bakery delivery service, although when and for how long is unclear. 11Mr Bayssari gave evidence that, in 2005, the Deceased was admitted to hospital for about seven weeks and that he spent that entire time staying with his uncle. He did not say why the Deceased was admitted to hospital. In fact, according to the defendants, the Deceased had a severe stroke in 2004 and was admitted to hospital then. At that time, Ms El Akhouri came from Lebanon to be with her mother and, according to the defendants, stayed with their father. There is no reason to doubt that evidence. It is curious that Mr Bayssari did not mention in his affidavit why the Deceased was hospitalised, and I think the likelihood is that he could not remember. It would be natural for Ms El Akhouri to come from Lebanon when her mother was gravely ill and to stay with her father. It is unlikely that Mr Bayssari would have done so in those circumstances. 12On 4 May 2006, the Federal Magistrates Court made orders in connection with Mr Bayssari's separation from his wife. Under the terms of those orders, Mr Bayssari's wife had sole responsibility for the day to day and long term care, welfare and development of their children, and Mr Bayssari was restrained from contacting the children other than by returning any of their telephone calls, spending time with them at their request or by letter. Mr Bayssari's wife was also given the right to occupy the family home to the exclusion of Mr Bayssari until the youngest of their children turned 18 years of age. When that happened, the home was to be sold, and Mr Bayssari was to be given a proportion of the proceeds or his wife was to buy his interest out. Mr Bayssari appealed unsuccessfully against those orders. Nothing further of significance happened in the proceedings concerning Mr Bayssari's marriage until 2010. 13The Deceased's husband died on 3 June 2006, and, following his death, the Deceased went to live with Mr Bazouni for a period of approximately 6 months. 14According to Mr Bayssari, the Deceased was not happy living with her son and asked Mr Bayssari to move back home with her, which he agreed to do. It is not entirely clear when that conversation occurred. Ms Harfouche gives evidence that, in about 2007, she and her husband were experiencing financial difficulties. As a consequence, they were forced to sell their house, and, following the sale of their house, she, her husband and their youngest son moved into the Deceased's home with the Deceased. On or about 21 December 2007, they purchased another property, which Ms Harfouche says they then renovated. They did not move out of the Deceased's home until about July 2008, following completion of their renovations. 15I accept Ms Harfouche's evidence that she and her husband lived with the Deceased until July 2008 and that Mr Bayssari was not living with her at that time. Her evidence is consistent with documents showing when she and her husband bought their property. The likelihood is that the Deceased asked Mr Bayssari to move in with her when she knew that her daughter would be leaving and that, in about July 2008, Mr Bayssari moved in. The Deceased may well have raised the issue with Mr Bayssari on earlier occasions. It seems clear that she was keen to return to her own home. 16When Mr Bayssari moved in with the Deceased, the Deceased was receiving personal care and domestic assistance from a social worker from Home Care Service of NSW twice per week. The care she received eventually increased to five days per week in about 2010 as the Deceased became more frail. At some stage, Mr Bayssari started to receive a carer's allowance. He did not pay rent. 17There is a great deal of dispute concerning how much assistance Mr Bayssari provided to the Deceased and how close he was to the Deceased. Mr Bayssari says that he provided extensive assistance and was very close to his aunt. According to him, he purchased all food and other household items at his own expense, and he used to cook for the Deceased and pay bills from her account on her behalf. He says that he tiled the laundry in September 2011; that he fenced the house in 2009; that he paid for the Deceased's medication for four months when he first moved in; that he cleaned the house on a weekly basis, mowed the lawn and did some gardening, and took her food when she was admitted to hospital in 2010. He says that he was housebound and could not see his children because he worked as a full-time carer for the Deceased. He says that he used to take the Deceased to visit her friends. None of this evidence was corroborated. 18Much of the evidence is disputed by the defendants. They say that Mr Bayssari did little for the Deceased and gave evidence of the support they themselves provided to the Deceased. Some of their evidence is corroborated. In particular, a neighbour of the Deceased, Ms Rae Hunter, swore an affidavit in which she said that she observed both Mr Bazouni's wife and Ms Harfouche assisting the Deceased with housework, shopping and cooking. She said, on the other hand, that Mr Bayssari provided the Deceased with no assistance and always went out. Ms Hunter was not cross-examined because of her ill health. That undoubtedly affects the weight that can be given to her evidence. However, there is no reason to doubt Ms Hunter's evidence when she says that she observed Mr Bazouni's wife and Ms Harfouche assisting the Deceased; and I think her evidence also supports the conclusion that Mr Bayssari's evidence of the assistance that he provided the Deceased and the time he spent at home is exaggerated. 19There is other evidence that corroborates the evidence given by Mr Bazouni and Ms Harfouche and that undermines the evidence given by Mr Bayssari. In particular, the Deceased's cardiologist provided a letter setting out a long list of dates when the Ms Harfouche took her mother to consultations with him. No objection was taken to the admission of the letter, and, although Dr Nasser was not cross-examined, there is no reason to doubt the letter's accuracy. It supports Ms Harfouche's evidence that she provided considerable assistance to her mother. In addition, Ms Harfouche annexes to her affidavit copies of utility bills that she paid on behalf of her mother. There is no reason to doubt her evidence that she paid those bills for her mother and, in some cases, was reimbursed from the Deceased's bank account. Ms Harfouche says that she paid Mr Bayssari $200 to tile the laundry, and she has a note recording that fact. Again, there is no reason to doubt the authenticity of that note. 20In about March 2011, Ms Harfouche separated from her husband, and, in about June 2011, she went to live with the Deceased until the Deceased died. Ms Harfouche says, and I accept, that she continued to help her mother during that time. It would be natural for her to help her mother given that she was living with her. Mr Bayssari says that he recalls that, in or around November 2011, he arranged for Ms Harfouche to look after the Deceased while he went out and that when he got back he found that the Deceased had fallen down the stairs. After that incident, he says he was unwilling and unable to leave her again because he was very concerned about her safety and welfare. In my opinion, this evidence cannot be accepted. At the time, Ms Harfouche was living with the Deceased; and it is not plausible that Mr Bayssari felt constrained to stay at home to look after the Deceased in those circumstances. Mr Bayssari also says that he could not visit his children because he was housebound looking after the Deceased. However, the reality was that he was restrained from contacting his children unless they initiated the contact. There was nothing preventing them from visiting their father if they wanted to. In my opinion, he did not see his children because he was estranged from them. 21Mr Bazouni took his mother in following the death of his father. It is possible that there were tensions during that time. However, it is clear that Mr Bazouni had a close relationship with his mother, and there is no reason to think that that relationship did not continue when she moved back home. I accept Mr Bazouni's evidence that he and his wife continued to assist his mother after that time. 22These conclusions undermine substantially Mr Bayssari's claim that it was largely to him the Deceased turned for assistance. The position, I think, is that it suited the Deceased to have Mr Bayssari living with her because it permitted her to continue to live in her own home, and that arrangement simply continued after her daughter moved in with her. It also suited Mr Bayssari because it gave him a place to live rent free and entitled him to receive a carer's allowance. Mr Bayssari provided the Deceased with some assistance, but nothing like the level he says he did. He was free to come and go from the house, and that is what he did. The Deceased also obtained substantial assistance from her children. 23Mr Bayssari gave evidence that the Deceased told him on various occasions that it was her intention to change her will to provide for him. He gives evidence of one conversation in which he says that the Deceased told Ms Harfouche that she (the Deceased) wanted to help Mr Bayssari and that she wanted her daughter's help to change her will. He also says that, approximately two years before her death, the Deceased told him that she wanted to change her will. There is no evidence, however, that the Deceased took any steps to change her will; and I do not accept Mr Bayssari's evidence concerning the conversations he says he had with her on that topic. 24On 5 February 2010, the Family Court of Australia made property orders as between Mr Bayssari and his ex-wife, the effect of which was that his ex-wife was to pay Mr Bayssari the sum of $107,650. Mr Bayssari unsuccessfully appealed against that decision. On 16 June 2011, his ex-wife's solicitors provided him with three bank cheques totalling $98,585 in accordance with the orders the Family Court had made. Mr Bayssari returned those cheques, apparently believing that acceptance of them would compromise his rights. It is agreed between the parties that Mr Bayssari currently has an entitlement to an amount of $98,585, although that amount may be reduced because of costs orders against him in the Family Court proceedings. The plaintiff's current position 25As I have said, the Deceased died on 8 May 2012. Shortly afterwards, amid considerable acrimony, Mr Bayssari was evicted from the Deceased's house. He was homeless for a short period of time, following which one of his doctors found his current accommodation, which he shares with three other people. Mr Bayssari says he has a number of ongoing health issues, including complications with a disc in his neck. As a consequence of his previous injuries, he continues to experience difficulty in remembering things and in focussing. I accept that, given his age and his medical conditions, he is unlikely to find employment. Apart from a car worth approximately $700 and an amount in a bank account of $2,420, he has no assets. He is currently dependent on Centrelink Newstart payments of $509 per fortnight. He has applied for a disability pension, and, if that application is successful, he will receive approximately $650 per fortnight. The Deceased's children 26It is not for the Deceased's children to establish that they have an entitlement under the Act. They have the benefit of the will. It is, however, necessary to say something about their relationship with the Deceased and their own financial positions. 27As I have said, Mr Bayssari gave evidence that the Deceased told him that she was poorly treated while living with her son, particularly by her daughter in law. It may be that there were tensions in the family while the Deceased lived with her son. However, tensions of that type are not unusual. In my opinion, Mr Bazouni and Ms Harfouche each had a close relationship with the Deceased, and each provided her with considerable assistance in her old age. There is nothing to suggest that the Deceased did not also enjoy a good relationship with Ms El Akhouri, although clearly it was not as close given that Ms El Akhouri lived in Lebanon and continues to do so. 28Ms El Akhouri did not file an affidavit in the proceeding. The evidence concerning her financial circumstances is scant. However, Ms Harfouche gave evidence that Ms El Akhouri is in her late 60s and lives with her husband who is in his 70s. They have two children - a son, who lives with them, and a daughter, who is married and has three children. Ms El Akhouri suffers from chronic emphysema. The evidence is that neither she nor her husband has any significant assets. 29Mr Bazouni was born in 1948 and is currently 65 years of age. He worked as a barber during his working life. He is married with five children. He and his wife own their own home. One of his sons and two of his daughters live with him and his wife, and they are supported by their parents. Mr Bazouni retired in December 2009. He sustained a serious back injury in October 2012 while he was cleaning the gutters of the Deceased's house. He currently receives a pension of $345 per fortnight, and his wife has been receiving government assistance as his carer since March 2013. His second youngest daughter, Mary Therese, who lives with him, is very ill. 30Ms Harfouche was born in 1958. Since October 2009, she has been working as a sales representative for a tile company known as Saba Tiling. She works 5 days per week and currently earns $750 per week. As I have said, she separated from her husband in 2011. She currently lives in rented accommodation. It is unclear what her assets are. However, it can be inferred from the evidence concerning the financial difficulties she and her husband faced in 2007 and her current circumstances that they are not substantial. Relevant legal principles 31Section 59 of the Act provides: (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. 32Section 60 provides: (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered. 33Section 57(1) relevantly provides that the following persons are "eligible persons": (e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, (f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death. 34Mr Bayssari relies primarily on s 57(1)(e) in support of his claim. That subsection contains two limbs. The first is a requirement of a relationship of dependence, whether whole or partial. The second is a requirement that the claimant be a "member of the household of which the deceased person was a member". 35With respect to the first limb, the Act does not contain a definition of the words "dependent on". In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346, Hope AJA (with whom Clarke and Sheller JJA agreed) explained the meaning of the word "dependent" in these terms: The word "dependent" is an ordinary English word, and whether a person is or has been wholy or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". 36Similarly in Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 at [42], Palmer J said: Dependence ... so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance. For discussion, see Thompson v Public Trustee of New South Wales [2010] NSWSC 1137 at [101]-[111] (concerning s 6(1) of the Family Provisions Act 1982 (NSW), the predecessor of Chapter 3 of the Act); Drury v Smith [2012] NSWSC 1067 at [115]-[125]; Russell v NSW Trustee and Guardian [2013] NSWSC 370 at [24]-[34] per Hallen J. 37A person may be dependent upon another whether or not there is a coexisting legal duty: Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138. Dependency is not restricted to financial dependency but it "does involve one person being beholden to another person for some material, or physical, help or succour [and] emotional dependency is not enough": Skinner v Frappell [2008] NSWCA 296 at [85] per Young CJ in Eq (with whom Campbell JA agreed); see also Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-7 per Hope AJA (with whom Clarke and Sheller JJA agreed); Benney v Jones (1991) 23 NSWLR 559 at 565-6 per Priestley JA. "Partly" in the phrase "partly dependent" means "more than minimally" and certain trivial activities should be disregarded: McKenzie v Baddeley [1991] NSWCA 197; Alexander v Jansson [2010] NSWCA 176 at [13] per Brereton J (with whom Basten JA and Handley AJA agreed). 38The second limb of s 57(1)(e) requires that the applicant be a member of the same household as the deceased for some period of time. The Act does not specify a particular length of time during which the applicant must have resided with the deceased. 39Section 57(1)(e) provides for two cumulative requirements, and so the period during which the applicant and the deceased shared the same household does not necessarily have to coincide with the period during which the applicant was wholly or partly dependent on the deceased: Wolff v Deavin [2012] NSWSC 1315 at [30] per Macready AsJ. 40As with the question of dependency, whether or not an applicant is a member of the same household as the deceased is a question of fact and degree: Simmons v Pizzey [1979] AC 37 at 59 per Lord Hailsham cited in Russell v NSW Trustee and Guardian at [49]. Membership of a household connotes a degree of continuity and permanency of mutual living arrangements and a form of special familial relationship: Kingsland v McIndoe [1989] VR 273; Munro v Lake (Supreme Court (NSW), McLelland CJ in Eq, 8 February 1991, unrep); Wagstaff v Wagstaff (Supreme Court (NSW), Master Windeyer (as he then was), 6 November 1991, unrep); Porthouse v Bridge [2007] NSWSC 686. Membership of a household will be found where the applicant has "some intimate connection with the householder or another member of the household": Markulin v Drew (1993) DFC 95-140 per Young J; Wolff v Deavin. 41Mr Bayssari relies, in the alternative, on s 57(1)(f) in support of his claim that he is an eligible person. That section requires that the claimant be living in a "close personal relationship" with the deceased at the time of the deceased's death. Section 3(3) of the Act defines "close personal relationship" in these terms: [A] close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. 42Section 3(4) of the Act provides that, for the purposes of s 3(3): [A] close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care: (a) for fee and reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). 43Section 3(3) requires that the two adult persons in question be living together. However, the approach applicable to marriage-like relationships should not be applied in this context: Sharpless v McKibbin [2007] NSWSC 1498 at [71] per Brereton J; Hayes v Marquis [2008] NSWCA 10 at [79] per McColl JA (with whom Beazley JA agreed). The Act requires that the parties share accommodation together, but it does not necessitate the existence of a single residence: Popescu v Borun [2011] NSWSC 1532 at [51] per Macready AsJ; Skarica v Toska [2014] NSWSC 34 at [39] per Lindsay J. The question whether persons live together should be answered with regard to the nature and extent to which the persons in question share a household. Einstein J, in Hayes v Marquis at [165]-[166], put it this way: "the dominant parameter will be whether or not the individuals concerned may be discerned to regard the premises in question as their home and in doing so be acting reasonably": see also [75]-[80] per McColl JA (with whom Beazley JA agreed). 44Section 3(3) also requires that there be the provision, by one or each of those adults to the other, of both domestic support and personal care; "one of them alone would not be sufficient": Dridi v Fillmore [2001] NSWSC 319 at [13] per Master Macready (as he then was) concerning a similar provision in the Property (Relationships) Act 1984 (NSW). It is not necessary that the support be provided only by the applicant to the deceased. For example, in Skarica v Toska, Lindsay J found that the deceased provided the applicant with a place to stay, which was, at least partly, the applicant's home, and that contributed to a finding that there existed between the parties support and care for the purposes of the Act: at [44]. 45Neither "domestic support" nor "personal care" is defined in the Act. However, "domestic support" has been found to concern matters relating to the household: Drury v Smith at [132], and "personal care" has been interpreted as directed to matters including, but not limited to, "assistance with mobility, personal hygiene, physical comfort and emotional support": Hayes v Marquis at [168] per Einstein J. Whether emotional support on its own is sufficient to warrant "personal care" is unclear: see Dridi v Fillmore at [108]; cf Hayes v Marquis at [86]-[87] per McColl JA and [168] per Einstein J. 46An arrangement for the provision of domestic support and personal care for "fee and reward" is a commercial or business relationship between the parties living together: Skarica v Toska at [45]; Barlevy v Nadolski [2011] NSWSC 129 at [157] per Slattery J concerning a similar provision in the Property (Relationships) Act. However, the receipt by one party of a carer's pension or allowance from the government "does not require that an essentially private relationship be characterised as a business relationship": Skarica v Toska at [46]; but see Grech v Walsh [2007] NSWSC 302 concerning the Property (Relationships) Act 1984, where receipt by the applicant of a government carer's pension precluded the existence of a close personal relationship between it and the deceased. 47If a claimant is an eligible person because he or she falls within either s 57(1)(e) or (f), then, before making an order, the court must be satisfied there are factors which warrant the making of the order. The Act does not specify any factors the court should consider in determining whether to make the order. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241), McLelland J stated that the factors referred to in what is now s 59(1)(b) of the Act "are factors which when added to facts which render the applicant an 'eligible person' give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased". That formulation has been applied subsequently on a number of occasions: see, eg, Diver v Neal [2009] NSWCA 54 at [8] per Basten JA (with whom Allsop P and Ipp JA agreed); Evans v Levy [2011] NSWCA 125 at [64]; Russell v NSW Trustee and Guardian at [62] and cases there cited. 48If the court is satisfied that a claimant is an eligible person and that there are factors which would warrant making a family provision order, then the next question is whether an order should be made. As a result of the Court of Appeal's decision in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, there is now some doubt whether, in applying s 59, the court should follow the two stage process adopted by the High Court in Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-9 and Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [5] per Gleeson CJ; at [56] per Gummow and Hayne JJ; and at [112] per Callinan and Heydon JJ in relation to the analogous provisions of the Family Provision Act 1982 (NSW), the predecessor of Chapter 3 of the Act: see, eg, Donaldson v Lawless [2013] NSWSC 861. The first stage involved the court determining whether it could make an order for provision for the maintenance, education or advancement in life of a particular applicant. If the court was so satisfied, the second stage involved a determination of what provision, if any, should be made. The issue has been discussed in detail by Hallen J in Harrisson v Skinner [2013] NSWSC 736 at [62]-[79]. In that case, his Honour concluded that it was appropriate to continue to apply a two stage process, and he has subsequently affirmed that position on a number of occasions, most recently in Fulton v Fulton [2014] NSWSC 619. There is much to be said for that conclusion. Hallen J's position is reflective of a "general acceptance of the two stage approach, particularly at first instance" but also in the Court of Appeal: see Phillips v James [2014] NSWCA 4 at [50] per Beazley P (with whom Meagher JA agreed). It has also been said that the Act should be approached as containing "twin tasks", which overlap to some extent: see Hogan v Hogan [2013] NSWSC 1405 at [94] per Hallen J; see also Phillip v James at [49] and [53]. 49Whatever the position, as I pointed out in my judgment in Oldereid v Chan [2013] NSWSC 434 at [53], it seems clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60. Is Mr Bayssari an eligible person? 50As I have said, Mr Bayssari submits that he is an eligible person on two bases. The first is that he was wholly or partly dependent on the Deceased and was a member of the household of which the Deceased was a member. The second is that he was in a close personal relationship with the Deceased at the time of her death. 51I do not accept either of those contentions. 52As to the first, I am prepared to accept that Mr Bayssari was a member of household of which the Deceased was a member. The arrangement was for an indefinite period of time. It arose from, and was based on, the familial relationship between the Deceased and Mr Bayssari. It involved the sharing of household responsibilities at least to some extent. 53However, I do not accept that Mr Bayssari was wholly or partly dependent on the Deceased. Dependency seems to me to involve a degree of reliance so that, if the material support giving rise to the dependency is withdrawn, the dependent person will face some difficulties in providing that support for himself or herself, either by reason of some physical, financial or emotional limitation or attribute. The only material support that it could be said that the Deceased gave to Mr Bayssari is that she permitted him to live in her house rent free. Mr Bayssari no doubt found that to be convenient and financially beneficial because he did not have to pay rent. But I do not think that he could be said that he came to rely on the Deceased to provide him with accommodation. He had no difficulty living independently prior to moving in with the Deceased. It was the Deceased who requested him to move in, not he who asked the Deceased whether he could move in. He did not have accommodation immediately after he was evicted from the Deceased's house. But that seems to be because he did nothing to arrange alternative accommodation notwithstanding that he knew that the defendants wanted him to vacate the property so that it could be sold. One of his doctors found his present accommodation for him. But I do not think that that establishes that he was incapable himself of finding accommodation because he had come to rely on the Deceased to provide it for him. Any accommodation available to him would likely be inferior to his living arrangements with the Deceased because of his own financial position; and that, no doubt, contributed to his reluctance to move out. But I do not think that that alone is sufficient to establish a relationship of dependency. Mr Bayssari was an independent adult who found it convenient to live with his aunt because of his financial position. That alone is not sufficient to establish that he was dependent on her. 54Nor do I think that there was a close personal relationship between Mr Bayssari and the Deceased. Mr Bayssari was staying with the Deceased because it suited both of them. Mr Bayssari provided the Deceased with some assistance. However, as I have said, in my opinion, he exaggerated the degree of assistance that he provided, and the Deceased was largely dependent on others to provide her with assistance, including Home Care and her son, daughter-in-law and daughter. Nor do I think that it could be said that Mr Bayssari provided the Deceased with significant personal care. It may be accepted that Mr Bayssari was fond of the Deceased. But I do not think that their relationship could be described as close; and again, in my opinion, he exaggerated the closeness of the relationship between them. In my opinion, they lived substantially independent lives. The Deceased received much of the domestic support and personal care she needed from others, not from Mr Bayssari. To the extent that he provided the Deceased with assistance, it was not sufficient to constitute a close personal relationship. Are there factors warranting making an application? 55Having regard to the conclusions I have reached, this question does not strictly arise. However, I should say something about it. 56The question is whether there are factors which would be generally regarded as making Mr Bayssari a natural object of testamentary recognition by the Deceased. 57It is helpful in answering that question to start with the position before Mr Bayssari moved in with the Deceased. At that time, there was nothing about his relationship with the Deceased which made him a natural object of testamentary recognition by the Deceased. He had stayed with the Deceased and her husband for a short period of time following the breakdown of his marriage. He was on good terms with the Deceased and her husband and, on the findings I have made, visited them on occasions and may have helped them out from time to time. But none of that made him a natural object of testamentary recognition by the Deceased. 58Did anything change after the Deceased asked Mr Bayssari to move in with her? In my opinion, it did not. As I have said, that arrangement came about because it suited them both. Mr Bayssari was permitted to live in the Deceased's home without paying rent. In return, he provided some assistance to her and, by being there, enabled her to continue to live at home. Even if, as a result of the arrangement, Mr Bayssari became dependent on her for his accommodation, I do not think that that made him the natural object of testamentary recognition by her. On the conclusions I have reached, Mr Bayssari did not provide the Deceased with a level of help and assistance that would have caused her to think that he should be recognised in her will. Nor is there any evidence, apart from what Mr Bayssari says, to suggest that, during the time he spent with the Deceased, they formed such an emotional bond that he might have expected some recognition in the Deceased's will. Mr Bayssari received the recognition he might have expected for the services he provided by being permitted to live in the Deceased's home without paying rent. Assuming Mr Bayssari is an eligible person and there are factors warranting the application, should an order be made? 59Even assuming that Mr Bayssari was dependent on the Deceased and even assuming that he provided the Deceased with greater assistance and was closer to the Deceased than I have found, I would not have concluded that he had been left without adequate provision for his proper maintenance, education or advancement in life. He was, of course, left nothing, and he has nothing apart from a pension and a right to recover from his former wife the sum of $98,585 less any costs order he may have to pay. 60However, in considering whether Mr Bayssari has been left without adequate provision, it is necessary to consider his relationship with the Deceased that gave rise to the entitlement, the size of the Deceased's estate and the position of the Deceased's children. 61If Mr Bayssari satisfies the requirements of s 59(1)(a) and (b), it is because he became partly dependent on the Deceased over a period of approximately four years for his accommodation, and, during that time, he provided sufficient assistance to the Deceased and became sufficiently close to her to justify the conclusion that there are factors warranting the making of the application. Nonetheless, during that time, Mr Bayssari obtained the benefit of rent free accommodation, and his position needs to be compared to the position of the Deceased's children. They were obvious objects of the Deceased's testamentary bounty. They each had good relations with their mother throughout their lives, as is reflected in the Deceased's will. Mr Bazouni and Ms Harfouche provided their mother with considerable support over a number of years. Mr Bazouni took his mother in for a period of six months following the death of his father. The estate is not large. Each of the Deceased's children have substantial needs themselves, and it is doubtful that all their own needs can be met out of the estate. Having regard to those matters, I am not satisfied that Mr Bayssari was left without adequate provision for his proper maintenance, education or advancement in life, and I would not have made an order in his favour even if he were otherwise eligible. Orders and costs 62Mr Bayssari has been unsuccessful in his claim. In some circumstances, particularly in family provision matters, it may be appropriate for the court to depart from the general principle stated in Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.1 that costs follow the event, particularly where a costs order will affect the court's assessment of the needs of the applicant: Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 at 522 per Gaudron J; McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484; McCusker v Rutter [2010] NSWCA 318 at [34]. However, there is no general principle that an unsuccessful applicant in family provision matters should not have to pay costs: Fulton v Fulton (No 2) [2014] NSWSC 857 at [44]-[50] per Hallen J; Lillis v Lillis [2010] NSWSC 359 at [23] per Hamilton AJ; for further discussion, see Harkness v Harkness (No 2) [2012] NSWSC 35 at [18] per Hallen J. In the present case, I can see no reason why Mr Bayssari should not have to pay the defendants' costs. On the findings I have made, Mr Bayssari failed to establish that he was an eligible person and that there were factors warranting the application. The Court's conclusions on those issues do not depend on the financial position of Mr Bayssari with or without a costs order against him. 63Accordingly, the proceeding should be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2014